A Guide To School Discipline And School Suspension For .

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Office of the OmbudsmanA Guide to School Disciplineand School Suspension forYouth, Parents, and CaregiversOffice of Children and Family Services, Office of the Ombudsman52 Washington Street, 230NRensselaer, NY 12144888.219.9818 or 844.696.6283 (Helpline) 518.486.7082 (Office)The information in this guide is a plain language, general reference tool forstudents, parents, and guardians. It is not a publication of the New York State Education Department.Any person facing criminal charges should seek the advice of an attorney.Neither the Office of Children and Family Services, the Office of the Ombudsman, nor an ombudsman isyour attorney.1Final: 11/2019

Table of ContentsWhat is the Office of the Ombudsman? . 3Navigating School Suspension . 4What are the School Rules? . 4Before a Suspension: Have a Talk . 4Who Can Suspend a Student and When? . 5Short-Term Suspension. 6Notice of Suspension . 6When is the Informal Conference and What Happens At One? . 6Long-Term Suspension . 7Notice of Suspension . 7What is a Fair Hearing? . 7Who Decides the Outcome of a Fair Hearing? . 8How to Prepare for a Fair Hearing . 8What Will Happen at a Fair Hearing? . 8Concluding the Fair Hearing . 9After the Fair Hearing . 9Appealing the Superintendent’s Decision . 9What are a Youth’s Academic Rights During Suspension? . 10Suspension for Students with Disabilities . 11How Does New York Define ‘Disability’ and ‘Presumed to Have a Disability’ for EducationPurposes?. 11The Manifestation Determination Review (MDR) . 11School Misconduct and Criminal Charges . 14Appendix . 15Important Terms . 15Special Education Regional Offices . 16Education Law Legal Service Providers by Region and County . 172Final: 11/2019

What Is the Office of the Ombudsman?The Office of the Ombudsman (OOTO) is part of the Office of Children and Family Services(OCFS). OOTO’s role is to help protect the legal rights of youth who are in invovled in thejuvenile justice system.OOTO is a connection between youth and their placement administration, families, attorneys,and other offices within OCFS. The ombudsmen visit sites regularly to counsel youth, takereports, and provide recommendations. The ombudsmen also take reports from youth, familymembers, attorneys, site staff, and other concerned parties who contact OOTO through phonecalls, letters, or email.All youth in the custody of the Office of Children and Family Services (OCFS)—meaning youthin placement at an OCFS facility on aftercare in their community or at a child welfare agency—and all youth in detention have access to the OOTO. Youth and their parent or guardian cancommunicate with an ombudsman almost any time.How to Contact OOTO Call the OOTO Helpline at 1.888.219.9818. OOTO’s office hours are from 9 a.m. to 5 p.m., Monday through Friday. If calling the Helpline after 5 p.m. or on weekends, press 1 to leave a message for OOTO orpress 2 if the call is about police contact. An ombudsman checks the Helpline regularly. Email OOTO at myallies@ocfs.ny.gov. Send a letter to:OCFS Office of the Ombudsman52 Washington Street, 230 NorthRensselaer, NY 12144If a youth is not in an OCFS facility, make sure to include information about where/how to getback in touch.3Final: 11/2019

Navigating School SuspensionSchool suspension can be an intimidating and confusing process. This guide can helpstudents and parents/guardians navigate that process and explain a student’s rights andresponsibilites. For even more detail about the process, students and parents/guardiansshould contact a free or low-cost attorney. Pages 17-19 of this guide provide a list ofresources.A. What are the School Rules?When it comes to school suspensions, all schools in NewYork must follow Education Law § 3214. This lawidentifies situations under which a student may besuspended and the requirements of the suspensionprocess. It also includes definitions of “violent pupil” and“disruptive pupil” (see page 15 of this guide). The lawalso includes disciplinary actions for youth who bringfirearms to school.A Code of Conduct often includesrules about: Being late/absent Property damage Academic dishonesty Alcohol and drugs Weapons and fire starting Bomb threats Bullying Gang activity Sexual assaultThe school rules may regulatestudent conduct related toschool activities, includingbehavior that occurs: Before and after school Outside of school hours butwhile on school property While traveling on schoolvehicles At school sponsored eventsIn keeping with Education Law § 2801, all New York schooldistricts have school rules that are part of a school code ofconduct. Students often receive a copy of these rules fromschool and may recieve a copy in the mail at their home.Many school districts also post the code online. If you are astudent facing suspension and are uncertain about whatthe rules are, you and/or your parent or guardian shouldask the school for a copy of the rules. You can also ask theschool to explain any part that you do not understand.B. Before a Suspension: Have a TalkAt Home: Youth and a Parent/GuardianIf a student is facing suspension, it is important thatthe student and parent/guardian talk, in an open andnon-judgmental way, about the charges ofmisconduct and what led to them. Youth deal with allsorts of challenges, some of which are not obvious,that may have brought about the alleged misbehavior(e.g. bullying, conflict with another youth or teacher,social pressure, or other frustrations and personalissues). Parents/guardians may be the bestadvocates for a student who is facing suspension. Tobe effective, the parent/guardian should be aware ofwhat has been or is going on as best they can.4Final: 11/2019

At School: Guidance CounselorWhere possible, a student facing suspension and/or their parent/guardian should reach out tothe student’s guidance counselor. Guidance counselors work to solve personal, social, andacademic problems and can be a valuable resource in figuring out how to handle a potentialsuspension. They may also be an ally when it comes to working with the school to offeralternatives to suspension, such as counseling, mentoring, peer mediation, school-basedyouth court, or school or community service where the school has these options.C. Who Can Suspend a Student and When?Depending on what kind of suspension it is, a school’s board of education, board of trustees ortrustee, school or district superintendent, or school principal has the power to suspend a youth.School suspension shouldbe considered as a lastresort, only after otherdiscipline measures, suchas peer mediation areconsidered first.Education Law § 3214 (3) (a) states that a student who is“insubordinate or disorderly or violent or disruptive, or whoseconduct otherwise endangers the safety, morals, health orwelfare of others” can be suspended from school. A school canalso suspend a student if they violate local school rules.Types of SuspensionA school can suspend a student for a short term (five or fewer school days), often known as a‘principal’s suspension,’ or a long term (six school days or longer), often known as a‘superintendent’s suspension.’ Depending on the circumstances and length of suspension, thesuspension may occur in school or out of school. No matter what kind of suspension a studentfaces, the school must provide the student with academicA school cannot suspend awork (see page 10).student for tardiness ortruancy, or on the conditionthat the student obtainpsychiatric treatment orother evaluation.Short-term suspensions for five school days or fewer requirenotice to the youth and parent/guardian and the opportunity forthe youth and their parent/guardian to meet with the schoolprinicipal to discuss the alleged misconduct (see page 6).Unless the student’s presence in the school poses acontinuing danger to people at school or school property or poses a present threat ofacademic disruption, the notice must occur prior to the suspension.Long-term suspensions require the school to give the student and their parent/guardian noticeand hold a fair hearing. At the hearing, the student has the right to be represented by anattorney (see page 17), question witnesses, and present evidence.5Final: 11/2019

Short-Term SuspensionA. Notice of SuspensionIf a student is charged with misconduct and faces a short-term suspension, a parent/guardianmust receive notice in writing that the youth may be suspended from school. Written noticemust occur by hand delivery, express mail delivery, or another means that would ensurenotice within 24 hours (see Education Law § 3214 [3] [b] [1]; 8 NYCRR § 100.2 [l] [4]). Regularmail or a phone call are not, by themselves, acceptable forms of notice—although a schoolmay also follow up the written notice in these ways. The notice must be in theparent’s/guardian’s primary language.The notice must include two things:1. A description of the misconduct, code or rule violation andthe date that it took place. The description must includeenough information for the student and the parent/guardianto understand what allegedly happened during the incident.An informal conference does nothappen automatically. It is thestudent and parent/guardian’sjob to challenge the suspensionby requesting a conference. Achild’s return to school cannotbe conditioned on aparent/guardian meeting with theprincipal.2. An explanation of the student’s/parent’s right to request animmediate informal conference with the principal. Thenotice must also explain the student’s/parent’s right toquestion the person who alleged the misconduct (for example, the students who sawand/or brought forward the allegation of misconduct).B. When is the Informal Conference and What Happens At One?The informal conference must occur before suspension—unless the youth’s presence at school poses a continuingdanger to others or property, or the youth poses an ongoingthreat of disruption to the school day. In these cases, both thenotice and the opportunity for the informal conference willoccur as soon as practicable after the suspension.At the informal conference, the student and/or aparent/guardian can give the student’s version of events andquestion the account of the person who accused the youth of misbehavior. This is also theopportunity for parents/guardians to help the youth and school brainstorm ways to address theyouth’s behavior so that they will not face possible suspension again.At the conference, the student and parent/guardian should discuss alternatives to suspension,such as counseling, mentoring, peer mediation or school-based youth court, or school orcommunity service, where the school hasThe student and their parent/guardian also havethese options. If the principal determinesthe right to question complaining witnesses inthat suspension will occur, the student andthe principal’s presence. This gives theparent/guardian should also ask whetherprincipalan opportunity to decide whether theirthe student’s school record will reflect theoriginal decision to suspend was correct orsuspension and/or if it is possible to keepshould be modified.notation of the suspension out of the record.6Final: 11/2019

Long-Term SuspensionOnly a school district superintendent or their designee can suspend a student for six or moreschool days. In some cases, a school will institute a short-term suspension while taking stepsto suspend the youth long-term. See page 6 for the short-term suspension process.For a long-term suspension, Education Law § 3214 (3) (c) gives the student andparent/guardian the right to a fair hearing, with the right to have an attorney or other advocatewith them. Some school districts will provide a list of free and low-cost legal services. You canask your school if they have a list or consult pages 17-19 of this guide.A. Notice of SuspensionIf a student is charged with misconduct and faces a long-termsuspension (more than five school days), as well as therequirements for the short-term suspension, the student andparent/guardian must: Have an opportunity for a fair hearing; and Receive reasonable notice that provides them with enoughinformation to prepare an effective defense.Regular mail or aphone call are not, bythemselves,acceptable forms ofnotice—although aschool can follow upwritten notice in theseways.At the fair hearing, a student has the right to representation by counsel and the right toquestion witnesses against them and present witnesses and other evidence on their behalf(see Education Law § 3214 [3] [c] [1]).The notice must include two things:1. A description of the alleged misconduct. The description should include enoughinformation for a student to prepare a defense against the allegations—although thenotice may not state every single charge of misconduct; and2. An explanation of the right to a fair hearing and the proposed date of the hearing.B. What is a Fair Hearing?A fair hearing is a method of due process—or fair treatment. A school has the burden ofproving the charges of misconduct. This means that it is the school’s job to show that thestudent did what the school charges them with doing.AdjournmentIf the student and their parent/guardian cannot attend the fair hearing or they need moretime to prepare, they should contact the hearing officer or school to request anadjournment. This delays the hearing to a later date. If the student and parent/guardian requests the adjournment, the studentwill likely continue to serve a suspension until the new hearing date, if the studenthas already been suspended. In some cases, the hearing officer mayrecommend subtraction of the delay time from the overall recommendedsuspension time. If the school requests the adjournment, the student may be permitted toreturn to school until the new hearing date.7Final: 11/2019

C. Who Decides the Outcome of a Fair Hearing?Either the school district superintendent or someone they choose will be the hearing officer(i.e. the “judge” who decides whether the student committed misconduct). The hearing officerwill allow for both the school and the student to present witnesses and testimony. The hearingofficer can also take oaths from witnesses and request documents, such as the student’sschool records and school discipline records.Pleading No Contest / Signing a WaiverPleading no contest orsigning a waiver means thatthe student does not want tochallenge the misconductcharges, and the school willnot enter any witnessstatements or otherevidence about the charges.Pleading “no contest” or signing a waiver must be donevoluntarily, knowingly, and only when fully informed. Inpleading no contest or signing a waiver, the youth admits tothe charges, gives up the right to the fair hearing, and thesuspension will go in the youth’s school record. A student canplead no contest by contacting the school or hearing officerbefore the day of the hearing.D. How to Prepare for a Fair HearingA student has the right to representation by counsel, the right to question witnesses againstthem, and the right to present witnesses and other evidence in support.A youth/parent should collect and review any documents related to the student and thesuspension. Parents/guardians have the right to review or inspect their child’s school record. Aparent/ guardian can also request a copy of the record and the suspension packet. The packetshould include any documents related to the incident, including video, if available or taken. Itmay take the district or school a few days to weeks to compile all the requested documents, sothe request should be made as soon as notice of suspension is received.If a student’s and/or parent’s/guardian’s primary language is not English, they should requestthat a translator be present at the hearing.E. What Will Happen at a Fair Hearing?At the hearing, the school will present its case first, including evidence and witnesses whoallege that the student misbehaved. The student and parent/guardian then have the right toquestion these witnesses, as well as present their own witnessesIndividuals can attendand other evidence in support of their position. The hearing willthe hearing to testifybe recorded, either by audio recording or by written transcriptabout the student’scharacter. Characterwitnesses might includeministers, coaches, ortherapists.Student Witnesses and Evidence in SupportIf a witness in support of the student cannot attend thehearing, the student and parent/guardian can ask thewitness to write a letter about what they know or sawrelated to the incident. For the hearing, the student or parent/guardian can also requestthat individuals who know the youth—a coach, employer, pastor, neighbor, etc.— writea letter to the hearing officer to demonstrate that the youth is a positive member of thecommunity.8Final: 11/2019

F. Concluding the Fair HearingAfter the school and the student and parent/guardian have presented their sides, the hearingofficer will make factual findings and recommend the appropriate discipline to thesuperintendent—for example, how many days the youth should be suspended, if at all. If thehearing officer concludes that a youth committed the misconduct, they may consider otherdocuments the student and/or the school submits that are unrelated to the misconduct whendetermining a penalty (for example: academic records, information about prior incidents thatthe school submits, or letters in support of the youth that they submit).The superintendent can accept or reject all or part of the hearing officer’s findings. In certainschool districts, the school rules determine the maximum length of suspension for differenttypes of misconduct of students in different grades.A student and parent/guardian should ask that the suspension be removed from the youth’sschool record at the end of the school year. Parents/guardians may also want to ask thehearing officer to recommend additional, non-disciplinary interventions for the youth, such ascounseling or peer mediation.G. After the Fair HearingAfter the hearing officer’s recommendation goes to the superintendent, the superintendentmust notify the student and parent/guardian in writing of the final decision and the discipline tobe imposed. The superintendent usually makes his/her decision the same day or the day afterthe hearing officer's recommendation.H. Appealing the Superintendent’s DecisionA student and parent/guardian can appeal the superintendent’s final“Making an appeal”decision to the local board of education if they believe the suspensionmeans askingis improper, the suspension is too long, or if the school did notsomeone in a higherproperly follow the hearing process. If the student/parent is notposition tosatisfied with the Board’s decision, they can also make an appeal toreconsider a case.the Commissioner of EducationTo appeal the decision, instructions are usually at the bottom of the superintendent’s finaldecision notice as well as in many school districts’ student code of conduct. Appeals mustusually occur in writing; the final notice or the student code of conduct will give the timelinesfor the appeal process. Parents/guardians and the student may want the assistance of anattorney in making an appeal and should see pages 17-19 to find assistance.Before making the appeal, the student or theirparent/guardian should ask for the audio or writtentranscript from the hearing by contacting the hearing officer.The student and parent/guardian should use the transcriptto write the appeal. Appeals should only discuss theevidence presented at the hearing and then explain whythe hearing officer’s decision is wrong based on theevidence, or why the suspension is too long or improper.9Final: 11/2019

I. What are a Youth’s Academic Rights During Suspension?The work or instructiona student receivescannot be busy workor work below theiracademic or gradelevel.If a student is suspended, the most important thing is to make surethat they receive homework, class work, and/or grade-levelinstruction so that they can continue to learn and earn academiccredit. (See Education Law § 3214 [3] [e].)If the youth is between 6 and 16 years old—or 6 and 17 in someschool districts—the school must arrange for them to receivealternative academic instruction during the full term of the suspension. This may occur inschool in a separate area, or out of school--either off site or at home. If the misconduct relatesto a criminal charge and the youth is in county detention, academic instruction must occur atthe detention facility. In the case of an off-site school suspension, the school must inform thestudent and parent/guardian of the location where classes will take place.IMPORTANT: Sometimes the alternative instruction is far less engaging than when ayouth is at school. In some districts, it may be only a couple hours a day of tutoring andwork at the library, a coffee shop, or some other public place. If a student or parent/guardian hasconcerns that the alternative instruction is not helping the youth stay engaged, is below grade-level,or is not appropriate for the youth’s needs, they should contact the youth’s guidance counseloror the academic coordinator.If city or state tests or Regents exams occur during thesuspension, a student has the right to take these tests.If the youth is 17 or older, a school does not have toprovide alternate academic instruction, although someschools will. A parent/guardian of a student facingsuspension should ask about the youth’s options.If you are receiving andattending alternativeinstruction sessions, youcannot be marked absentfrom school during theterm of suspension.Suspension for Students with DisabilitiesIn New York, Education Law § 3214 (3) (g) applies tostudents with disabilities, as well as to students “presumedto have disabilities.” The Individuals with DisabilitiesEducation Act (IDEA) gives extra protections to studentswith disabilities who face a suspension longer than 10days.All students with anIndividualized EducationProgram (IEP) areconsidered to have sometype of disability and areeligible for specialeducation services.A. How Does New York Define ‘Disability’ and ‘Presumed to Have a Disability’ forEducation Purposes?Youth Has a Disability If Classified by theCommittee on Special Eucation (CSE) as:Youth Presumed to Have a Disability If:10Final: 11/2019

Autistic Deaf Deaf-blind Emotional disturbance Hearing impaired Intellectual disability Learning disability Multiply disabled Orthopedic impaired Other health-impaired Speech or language impaired* Traumatic brain injury Visually impaired (includes blindness) A parent has previously expressed a concern tosupervisory administrative personnel or thestudent’s teacher at the school, in writing (ororally if the parent is unable), of their child’s needfor special education. The parent has previously requested anevaluation of the student. A teacher or other school staff has expressedconcerns about a pattern of the student’sbehavior to the director of special educationservices or to other supervisory personnel.*A youth with a disability does not include one who is unfamiliar with English or is an English LanguageLearner (ELL) unless they are also classified by the CSE as having a disability. A youth’s differences intheir home environment, culture, or socio-economic status do not automatically make them a youth with adisability.B. The Manifestation Determination Review (MDR)What is a ‘Disciplinary Change in Placement’?A change in placement is when a school suspends a student for more than 10 consecutiveschool days in a row or for 11 total days in the same school year for discipline related tosimilar behavior that resulted in a series of removals that constitute a pattern. (See 8 NYCRR201.2 [e] [1], [2].) When a suspension results in a change in disciplinary placement, a MDRmust occur. The purpose of the MDR is to determine whether the behavior that led to thesuspension was caused by the student’s disability and/or if the behavior was a direct result ofthe school’s failure to implement the student’s IEP. (See 8 NYCRR 201.4 [c] [2].).Who is Part of a Youth’s MDR Team? A school representative with knowledge of the youth and the interpretation of informationabout the youth’s behavior; The youth’s parent(s) or legal guardian(s); and Relevant members of the school district’s Committee on Special Education, as determinedby the parent/guardian and school district.MDR ProceedingsUsually, the MDR occurs after the superintendent’s hearing andmust happen within 10 school days of the suspension thatresults in a disciplinary change in placement. At themanifestation meeting, the MDR team will consider all relevantinformation in the student’s file. So, if the student works with acounselor or any other supports outside of school, it is importantfor the student or parent/guardian to arrange to have thosepeople attend the meeting, or write a letter explaining theconnection between the behavior and the disability.Students withdisabilities can receive asuspensioc n lastingfewer than 10 days tothe same extent as dostudents who do nothave a disability.11Final: 11/2019

If the school decides that an incident was caused by or is a manifestation of the student’sdisability or result of an IEP not being implemented, the student has the right to return toschool immediately.If the school decides that a student’s behavior was not caused by or is not a manifestation ofthe student’s disability, the suspension will continue. If the suspension is for longer than 10school days, a superintendent may order a student to an interim alternative education setting(IAES). The student must continue to receive services consistent with their IEP.What is an Interim Alternative Educational Setting (IAES)? An IAES is a term for a temporary educational setting and program other thanthe student's current placement that enables the student to continue to receiveeducational services. A school superintendent can place student in an IAES for up to 45 school daysfor behavior involving serious bodily injury, weapons, illegal drugs, or controlledsubstances even where the behavior was determined to be a manifestation of thestudent’s disability. See 8 NYCRR § 201.7 (e). Exception: A school district may request an expedited impartial due processhearing to place a student in IAES for up to 45 school days where the districtbelieves that keeping the student in their current placement is substantiallylikely to result in injury to the student or others. See 8 NYCRR §§ 201.8 and201.11.Challenging the MDR Process or ResultA student and parent/guardian can ask for an expedited hearing if they do not agree with theresult of the MDR or if there is an issue with the procedure itself. The student andparent/guardian may make a due process complaint, in writing, to the school. The requestshould include the reason for disagreeing with the MDR result, any documents the school didnot consider, and describe ways, if any, the school violated the MDR process. (See 8 NYCRR§ 201.11 [a].)The expedited process requires: Holding a resolution session within seven calendar days of receiving thecomplaint; the parties may also enter into a mediation session A hearing must be held within 20 school days (if the matter has not beenresolved within 15 days of the complaint) An impartial hearing officer must issue a decision within 10 school days afterthe hearing. The student will remain in the current special education placement pending thehearing officer’s decision, unless the student is in an (IAES). In this case, thestudent will remain in the IAES pending t

Only a school district superintendent or their designee can suspend a student for six or more school days. In some cases, a school will institute a short-term suspension while taking steps to suspend the youth long-term. See page 6 for the short-term suspension process. For a long-term suspension, Education Law § 3214 (3) (c) gives the student and

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